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Friday, January 06, 2017

Should we be uploading FIRs on the internet?

On 7th September, 2016, the Supreme Court in a widelyreported judgment, directed that copies of all FIRs, except FIRs relating to sensitive offences, be uploaded on the police or State government websites. Several High Courts have also made a similar direction (2010 Delhi High Court, 2012 Orissa High Court , 2013 Punjab and Haryana High Court , and 2014 Himachal Pradesh High Court). These judgments, and the Supreme Court judgment in particular, were delivered in response to public interest litigations, in which the Petitioners contended that uploading copies of FIRs online would considerably ease the process of their retrieval and enable the accused to take appropriate legal action to remedy their grievances.

Police stations across the country have begun acting on this directive. The practice of uploading FIRs online reduces the costs associated with dealing with the police machinery on crime reporting. However, the unhindered ability to retrieve FIRs raises questions relating to a) the privacy of the accused, b) the possibility of abuse of information, and c) the possible prejudices arising from a mere insinuation of crime. In this article, we argue that in the absence of robust data release policies and security standards for retrieval of FIRs uploaded on the internet, a directive that is intended to benefit the accused, will end up prejudicing her.

Why does the accused require access to the FIR?

The FIR usually contains the identity of the complainant and the details of the alleged incident, including the role attributed to the accused. The right of the accused to obtain a copy of the FIR at the earliest stage, even before the commencement of trial, is directly linked to the need for an impartial investigation and her right to defend herself. There are three reasons why the accused should have access to the FIR at the earliest.

By knowing the exact nature of the case against her, it enables the accused to defend herself.

It enables the accused to apply for anticipatory bail (to avoid pre-trial detention) or bail (in case she has been arrested), especially before the police files the charge-sheet and the trial starts.

It helps the accused avoid making any incriminating statements, thus safeguarding her constitutional protection against self-incrimination. Knowledge of the contents of the FIR give the accused an idea about the nature of investigation being conducted by the police, and avoid undue harassment.

In Indian law, the right of an accused to receive a copy of the FIR is codified under Section 207 of the Code of Criminal Procedure, 1973 (CrPC), which requires the Magistrate to furnish a copy of the FIR to the accused. Therefore, the CrPC, which governs criminal proceedings, contemplates that the accused receives a copy of the FIR only after a Magistrate has taken cognizance of the alleged offence. However, notwithstanding the scheme of the CrPC, the aforesaid judgments have now held that the an accused shall have almost immediate access to the FIR online, 24 hours after it has been registered by the police.

Part of the reasoning of the High Courts and the Supreme Court stems from the FIR being considered a "public document" under Section 74 of the Indian Evidence Act (see here, here, and here). The implication of a document being classified as a public document under the Evidence Act, is set out in Section 76 of the Evidence Act, which reads as under:

Every public officer having the custody of a public document, which any person has a right to inspect (emphasis supplied), shall give that person on demand a copy of it on payment of the legal fees therefor, ... .

Thus, the obligation of a public officer to furnish a copy of a public document (such as a FIR), is restricted to any person having a right to inspect the document. The provision does not state that a public officer must give a copy of a public document to *any* member of the public who pays the fees. This interpretation has been reaffirmed in several cases (See here, here, and here). These case-laws establish that the right to a public document under the Evidence Act, is limited to the interest a person has in it.

The qualification in the language of section 76 of the Evidence Act indicates that a person wishing to see a public document must demonstrate her right to do so, or her interest, in relation to the document asked for. The judgements which hold that FIR is a public document and must be uploaded on the internet, must take cognizance of this.

How do online FIRs help?

Uploading FIRs online eases the process of their retrieval by those who have a right to inspect them. This includes, most importantly, the accused, whose liberty is at stake once the criminal law has been set into motion. Uploading the FIR on the website of the police gives the accused notice of the case against her and enabler her to defend herself.

Online FIRs reduce the incentives for corruption, the costs of enforcing the right to access the FIR as codified under the CrPC (such as by filing applications in Court), and enable a more effective and efficient enforcement of rights under the law. Uploading FIRs online also helps the complainants and victims by reducing the chances that the original FIR will be tampered with, once it has been uploaded on the website. The exercise is thus beneficial to those directly linked with the complaint.

Ensuring easy digital access of the FIR also helps those individuals who might want to enter into ransactions/contracts with the accused, and want to verify her credentials. Such individuals may be said to have a right to inspect the FIR pertaining to the particular accused.

How can online FIRs hurt?

The benefits of online FIRs have to be juxtaposed against the possible costs. The problems relate to how the data is stored online, and how easy it is for parties to access it.

The costs of erosion of privacy through multiple small acts of surveillance and information collection, both by the State and private actors, has become the subject of policy debate, in India and across the world (Bhandari and Sane, 2016). The debate has also emphasised privacy as a shorthand for breathing space (Cohen, 2012). The ease of access of various details of the accused, complainant and scene of crime to unrelated parties, is problematic for two reasons:

It erodes the privacy of the individuals involved. It does not respect their right to keep their personal lives private. Even as the Supreme Court debates on whether the right to privacy is a fundamental right under the Constitution of India, there appears to be no policy-reason for allowing the public acces to the details of the accused at the FIR-stage. The oft-used policy argument for open criminal proceedings applies to trials. Transparency to the public at the stage of the trial creates incentives for good behaviour on the part of the judges and all parties involved such as lawyers and witnesses (Shapiro 1951).

It is possible that unhindered access to the personal data of the accused can potentially lead to mis-use of this data. This mis-use can occur because private actors use this information for commercial purposes, or just harassment, and lead to outcomes that are detrimental to the person. The mis-use can also occur because other branches of government can hold this information against them.

How does the current FIR policy fare?

It is not that considerations of privacy were completely ignored in the Supreme Court's order. The order did provide directions on how to treat "sensitive" cases. Only a police officer of the rank of Deputy Superintendent of Police or above can make a decision on whether to upload the copy of the FIR in lieu of its sensitive nature, and an accused always has the right to challenge this in Court.

Despite this, the current process of online FIRs is problematic. The first of the concerns relates to the idea of FIR being a public document under Section 76 of the Evidence Act. As explained in the previous section, public documents are only accessible to those who have a right to inspect them. This can be controlled in the offline world, where a person has to apply for a certified copy of a public document such as an FIR. However, in the digital world, once the FIR is online, anyone can search for this information (which includes some details about the residence and family of the accused), and use it as a tool of harassment and blackmail.

Second, the process and steps for retrieval are largely non-standardised, and have incorporated varied levels of security features. For example, if you wish to retrieve a FIR filed in a police station in Tamil Nadu, you need to key in the name of the accused, victim, or complainant along with a mobile number. You receive an OTP, which must be keyed in to be able to retrieve the FIR sought for. If you wish to retrieve a FIR filed in a police station in Delhi, you need to key in information such as the police station in which it was filed, the name of the accused, victim, or complainant, and if you know neither, then the FIR Number. Despite such barriers, it is fairly easy for complete strangers to retrieve copies of FIRs from the websites of the State police, with minimal time and effort. For instance, it is possible for a researcher to write a script to scrape this data off these websites without having to enter these details.

There is very little by way of uniform standards of the kind of information and the manner in which the FIRs are being made available online; the security protections in hosting such large swathes of data on unsecure, centralised servers; and the enforceability of such judicial directives.

Way forward

The cavalier attitude towards release of private data by the police leads to larger concerns of data release by government. We need to have better thought through data release policies. Issues such as who has access to data, in what form and how to secure such access, need to be resolved. In the case of health records, for example, we may not wish for everyone to have access to data, without permission from the person whose record is in question. In other cases, we may allow the public to have access, but with information of the key persons involved redacted. A debate on these questions has to take place in a universe where data that may have been acceptable to be publicly available offline, is now easily available online and we have to determine whether that makes a difference.

Vrinda Bhandari is a practicing advocate in Delhi. Renuka Sane is a researcher at the Indian Statistical Institute, Delhi. Bhargavi Zaveri is a researcher at the Indira Gandhi Institute of Development Research, Mumbai.